Hawaii Supreme Court: Orders New Election for Tied House Race

• The Hawaii Supreme Court ordered a new election for a tied Republican primary in House District 43, nullifying the previous result.
• The court found two main issues: two invalid ballots mistakenly cast by out-of-district voters and an unlawful tie-breaking method.
• Chief Election Officer Scott Nago's lauhala-basket drawing method was deemed an invalid 'rule' under Hawaii's administrative procedures law because it lacked public notice and hearing.
• The presence of any unaccounted-for ballot is sufficient to invalidate a tied election, shifting the burden of proof for ballot validity to the state.
• The two Republican candidates, Sheila Medeiros and Kanani Souza, were to compete in the general election, but the 2020 general election for District 43 was won by Democratic incumbent Stacelynn Kehaulani Eli. Kanani Souza later won the District 43 seat in the 2022 general election.

The right to vote means little if the result cannot be trusted. Here it could not. So the voters will settle it.

The Hawaii Supreme Court has mandated a new election for a tied Republican primary race in Leeward Oahu's House District 43, nullifying the previous outcome. The ruling, issued on a Friday, means voters will now decide the contest on the November general election ballot. This decision overturns an earlier tie-breaking procedure where Chief Election Officer Scott Nago had drawn Sheila Medeiros' name from a woven lauhala basket on August 15, following her 842-842 tie with Kanani Souza, a candidate in the 2020 primary.

One of the primary issues identified by the court was the tie-breaking method itself, which involved drawing a name from a lauhala basket. Chief Election Officer Scott Nago testified that he developed this method by modeling it after the office's existing process for determining party order on ballots. Crucially, this method was devised before the specific 2020 race had officially resulted in a tie.

The Supreme Court determined that because the method was created in advance to address potential ties, it constituted a 'rule' under Hawaii's administrative procedures law. As such, its adoption required public notice and a hearing, neither of which occurred. Consequently, the court declared the lauhala-box method invalid. The state's argument that the drawing was merely a one-time, case-specific decision rather than a formal rule was rejected by the justices, highlighting a significant breach of Hawaii administrative procedures election requirements.

The second critical flaw centered on two ballots mistakenly cast by voters from District 40, who were incorrectly given District 43 ballots and included in the final count. The court found it impossible to determine how these specific ballots were cast, thereby casting doubt on the integrity of the 842-842 tie. Justice Eddins underscored that a tie must be genuinely accurate before it can be broken, and the presence of these two out-of-district ballots rendered the result uncertain.

In a significant departure from standard election challenges, the court ruled that in a tied election, any unaccounted-for ballot is sufficient to invalidate the outcome, as there is no lead to overcome. This contrasts with ordinary contests where a challenger must demonstrate enough tainted votes to surpass an opponent's lead. Furthermore, the burden of proving the validity of these two ballots was placed on the state, not on Kanani Souza, a decision supported by a Hawaii statute that presumes official election records are evidence. The court also distinguished this case from the 1982 *Funakoshi v. King* precedent, which the state cited to argue against the court's power to order a new primary. The justices clarified that *Funakoshi* involved a race with a valid winner, whereas the current primary produced no legitimate victor. The court did not address three other claims made by Souza, including a constitutional challenge to the tie-breaking statute. The discrepancy was initially identified by the county's reconciliation report, tracing the issue to two voters at a Kapolei service center who received incorrect precinct ballots.

This Hawaii Supreme Court tied House race new election ruling establishes a significant precedent for election challenges in the state, particularly in closely contested or tied races. By clarifying that any unaccounted-for ballot can invalidate a tie and emphasizing strict adherence to administrative procedures for election rules, the court has heightened the standard for election validity. The justices underscored the importance of trust in election results, stating that the right to vote is diminished if the outcome cannot be relied upon.

As a result of the court's decision, Sheila Medeiros and Kanani Souza were to face each other in the general election. However, the 2020 general election for Hawaii House District 43 was won by Democratic incumbent Stacelynn Kehaulani Eli. Kanani Souza later won the District 43 seat in the 2022 general election. The court's intervention ensures that the final determination of the Hawaii House District 43 election will be made by the voters through a properly conducted process.

This ruling establishes a significant precedent for election challenges in Hawaii, particularly in tied races, by clarifying that any unaccounted-for ballot can invalidate the result and emphasizing strict adherence to administrative procedures for election rules. Lawyers advising political campaigns or involved in election law should be aware of this heightened standard for election validity and the implications for challenging close outcomes.

Source: Original reporting via Associated Press